Race and the Myth of Meritocracy: Supreme Court Edition

When "obviously qualified" apparently isn't enough

Over the last two days, there have been a lot of pixels burned on the topic of President Biden’s decision to nominate a Black Woman to the supreme court. Calls of reverse-racism or identity politics have come not just from typical far-right sources like The Federalist, but center-right (and notably Never-Trump) publications like The Bulwark, in which Charlie Sykes wrote:

“In a stroke,” write the editors of National Review, “[Biden] disqualified dozens of liberal and progressive jurists for no reason other than their race and gender. This is not a great start in selecting someone sworn to provide equal justice under law.”

Andrew Sullivan was even harsher.

The replacement will be chosen only after the field is radically winnowed by open race and sex discrimination, which have gone from being illegal to being celebrated and practiced by a president of the United States.

Go ahead, take umbrage at my citation of Sullivan and the reactionaries at NR. The commentary at Fox News is even worse.

But that doesn’t mean they are wrong.

Think about it this way. In announcing that his pick would be constrained by racial/gender identity, Biden did indeed, tell a generation of young progressive jurists that they need not apply.

https://morningshots.thebulwark.com/p/a-scotus-reality-check

I think it’s worth reading Syke’s article in that it is both right (in a perfect world sense) and completely wrong (in terms of the world we live in). The argument crystalizes how far we, as a culture, still need to go in our understanding of intersectional issues (like race, gender, and more). And one of the key things standing in the way of that is our attachment to the myth of “meritocracy.”

Before this goes any further, let’s restate the obvious: If all the tea leaves reading is correct, and Justice Ketanji Brown Jackson is the nominee, her C.V. is impeccable and there is no question she is qualified for the court. In fact, as a former Public Defender, she would bring a perspective to the court that has been missing for three decades. 

This is a point that Sykes doesn’t dispute. In fact, he says as much in his conclusion:

All indications are that Judge Ketanji Brown Jackson would be an impressive choice and could go on to be a consequential Supreme Court justice.

It’s the sentence that follows where the specter of meritocracy and the issues of pretending we live in a colorblind culture emerges:

But, in retrospect, Biden would have been better off putting the content of her character and her legal mind ahead of her identity.

Earlier this morning, James wrote about how Ilya Shapiro has been called out for a deleted Twitter thread in which he predicted that Biden pick will end up being “a lesser black woman.” What’s particularly notable is not just those tweets, but the argument that Shapiro made in 2009 about the nomination of current Supreme Court Justice Sonya Sotomayor:

Again, this does not mean that Sotomayor is unqualified to be a judge — or less qualified to be a Supreme Court justice than, say, Harriet Miers. It also does not detract from the history she would make as the first Hispanic Supreme Court nominee — if you don’t count Benjamin Cardozo, a descendant of Portuguese Jews. But a Supreme Court nomination is not a lifetime achievement award, and should not be treated as an opportunity to practice affirmative action.

https://www.cnn.com/2009/POLITICS/05/27/shapiro.scotus.identity/index.html

Shapiro’s critique of Sotomayor demonstrates how our adherence to the concept of meritocracy undercuts Sykes’s argument. Unless I am misremembering, President Obama had not committed to placing a “Hispanic Woman” on the Supreme Court and that was still how the nomination was received. For the record, it wasn’t just Shapiro who made the accusation that this was first and foremost identity politics–unsurprisingly, given his writings on race, the aforementioned Sullivan advanced a similar argument, as did writers at the National Review). One would have to be incredibly naive to think the same critique would not be deployed by many on the right (including Sullivan) if, without any pledge, Biden had just nominated a Black Woman.

And this represents the bind that our unwavering belief in meritocracy creates for people who come from backgrounds that have been, and more often than not continue to be, marginalized–not just that there is always someone more qualified, but said individual is intentionally (if not maliciously) being passed over for intrinsic and immutable characteristics like race or gender or sexuality. The person chosen is always an example of “practicing affirmative action.” And the nameless, faceless, and more qualified people being passed over–through no fault of their own, of course–are from a dominant cultural group (white, straight, and usually male).

The issue with meritocracy is not so much the concept itself as how we apply it. Combined with the “Great Man/Person” theory of history and mythic storytelling, we as a culture tend to focus on the idea that ultimately there is a single “right person” for a role. We wouldn’t have won the revolution without George Washington, we wouldn’t have a theory of evolution without Darwin, and the only person who could ever defeat the Empire was Luke Skywalker. Of those, the first is perhaps the hardest to argue, but there are arguments to be made.1 In the case of Darwin, we know that there were others working on similar theories at the same time. And, let’s not go into the debacle of whether or not the Empire was even defeated (let alone the question of one Skywalker, Luke2).

In reality, as anyone who has ever done hiring will tell you, the cases where there is a clear “only candidate” for a role are few and far between. And, as long-time commenter (and blogger in his own right) Hal_10000 points out “This whole thing of “the best candidate” is nonsense. There are dozens of judges who are qualified to be on SCOTUS. You can’t really say that any of them are massively superior to the others.” In fact, for most of our history, seats on the Federal Bench, not to mention the Supreme Court, have often as much about political patronage as they are qualifications (see for example the case of Bork, Robert).

What’s telling, in discussions of Supreme Court nominations, are the situations in which the meritocracy argument is and isn’t deployed. Was there any serious discussion if there were more qualified black candidates for the 8 seats that opened during the 24 years between the appointment of Justice Marshall and his replacement with Justice Thomas? Equally tellingly, has that question been seriously raised in the 9 previous appointments that happened in the 31 years that have passed since Justice Thomas’ appointed? And when it was (see, again, Sotomayor) to what degree was the meritocracy argument implicitly couched in an “affirmative action” framework? 

Therein lies the problem and the emptiness of arguments like Sykes that try to argue that, at least for the moment, accounting for race in a decision somehow invalidates the merit of the nominee. And to some degree, writers like myself help perpetuate it by feeling it’s necessary to restate that a candidate like Jackson is obviously qualified.3

The United States is not, and never has been a colorblind meritocracy. Perhaps one day we will be, though that will require a number of deep and conscious (at least, until they finally become unconscious) changes to our society (the like of which, as we have seen, are often pushed against and rolled back in reactionary moments like the one we are currently in). For the moment, however, trying to act as if we are a colorblind meritocracy more often than not will only delay that important work (i.e. preventing forward steps in the name of not appearing to be symbolic “affirmative action.”)–not to mention invalidate the hard work of nominees like Sotomayor, Jackson, and other “first” yet to be nominated.


1 – Given how talked out I think many folks are on this topic, it’s entirely possible that this section may generate far more discussion than the core of this post.

2 – In retrospect, perhaps the stronger “only [x] could do [y]” counter-argument would be “only Indiana Jones could have prevented the Nazis from getting the Ark of the Covenant.”

3 – I almost didn’t include the “restate the obvious” section, but I thought this article read strangely without it. I think that in itself is informative. The fact that something that should be obvious must be restated points out the fact that it is not actually that obvious. That ultimately underscores the core argument I am making.

FILED UNDER: *FEATURED, Joe Biden, Race and Politics, Supreme Court, US Politics
Matt Bernius
About Matt Bernius
Matt Bernius is a design researcher working to create more equitable government systems and experiences. He's currently a Principal User Researcher on Code for America's "GetCalFresh" program, helping people apply for SNAP food benefits in California. Prior to joining CfA, he worked at Measures for Justice and at Effective, a UX agency. Matt has an MA from the University of Chicago.

Comments

  1. James Joyner says:

    So, I agree with all of this with some really modest caveats.

    1. The Supreme Court has evolved into a weird beast and credentialism has become a thing in recent decades. We get into really weird debates on these picks, simply because they’re extremely rare and important. There was almost universal rejection from the intellectual class, myself included, of the Harriet Miers nomination. And I don’t think it was because she was a woman. She was qualified but not highly qualified and people were outraged by that fact. (And, again, I’ve actually changed my mind on Miers even though I still believe her credentials were meh.)

    2. There’s a chicken-egg argument on some of this.

    Because of structural barriers, it’s only relatively recently that we’ve had a significant number of women of color who were plausible SCOTUS picks. Even in RBG’s day, law schools were either not letting women in or severely limiting how many, on the basis that they were taking up slot that could go to a man. And Blacks faced all manner of obstacles. Add in intersectionality and Black women who made it through all the hoops required made up a tiny slice of the “extremely well-qualified.”

    This is a problem that obviously needs to be corrected and affirmative action is a perfectly reasonable response to it. But it’s a different problem than, say, segregation of sports leagues that existed not all that long ago. There were tons of highly-qualified Black baseball, basketball, and football players available and they just weren’t allowed to play.

    3. The point of the Shapiro post is that we should be able to have the discussion of why “merit” isn’t so cut-and-dried without the presumption that everyone—or even most people—who need to be persuaded on that front are bigots.

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  2. My Yixiao says:

    The only issue I have is saying ahead of time “it will be a black woman”. It just gives ammo to the opposition. Put who you want on the short list, publish it, and pick the one you want.

    Is it a bit of theatre? Yes. But it’s worth it.

    4
  3. gVOR08 says:

    Thank you, excllent post. At worst, Joe Biden, a long time career politician, is guilty of practicing politics, like every one of his predecessors as prez. The pearl clutching is ridiculous.

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  4. Modulo Myself says:

    What’s telling is that Sullivan and the NRO and every other conservative spends so much of their writing life complaining about the liberal elite (aka the meritocracy) but then suddenly they are defending the establishment against the undeserving minorities. Racism has so broken them and their audience that nobody even spots the contradiction. It’s like an anti-semite concluding that the lack of evidence of the Jewish plot is evidence of the Jewish plot.

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  5. Matt Bernius says:

    @James Joyner thanks as always for the engagement! On your points:

    1. I agree that credentialism has definitely risen in recent years (though I think we need to recognize that “recent” is becoming an increasingly relative term as this trend started in the ’70s/’80s and that’s getting dangerously close to half a century ago). And I wanted to address Meyers but couldn’t figure out how to do it without a long diversion that would take us far off-topic.

    2. I completely agree that there is a chicken and an egg issue to this. I’m also somewhat unconvinced of the

    “This is a problem that obviously needs to be corrected and affirmative action is a perfectly reasonable response to it. But it’s a different problem than, say, segregation of sports leagues that existed not all that long ago. There were tons of highly-qualified Black baseball, basketball, and football players available and they just weren’t allowed to play.

    Sports during the era of segregation were particularly egregious. But, in researching this essay I realized that 55 years have passed and 17 seats have opened on the Supreme Court since Marshall’s appointment in 1967. This will be only the second Black candidate to be nominated. I cannot believe that the “bench” of qualified candidates was that shallow.

    3. I intentionally tried my best to not to stake out a position specifically on whether an individual or statement is necessarily racist. I honestly don’t know if it’s productive in this context, especially as I think it obscures much more important points.

    [Also a second “thank you”: writing this response led me to check some math in the initial post and I realized that I totally have the year counts off on Marshall and Thomas.]

    3
  6. Moosebreath says:

    The only wrong this you said here is:

    “In retrospect, perhaps the stronger argument would be “only Indiana Jones could have prevented the Nazis from getting the Ark of the Covenant.””

    If Indiana Jones wasn’t there, the Nazis would have done exactly the same thing, and the Ark of the Covenant would have destroyed the people who opened it.

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  7. Matt Bernius says:

    @My Yixiao:

    Is it a bit of theatre? Yes. But it’s worth it.

    But is it really?

    I think one can easily make the case that making the pledge ahead of time may have been important for a critical block of the Democratic base–Black and progressive voters. It literally was a campaign promise.

    Likewise, as I point out in the article, chances are that Biden would have been attacked on this regardless of whether or not he had made the promise.

    In that calculus, I don’t see the upside for him in engaging in theatre to hide the decision. Is this really going to cause him to lose support? And if so with whom?

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  8. Daryl and his brother Darryl says:

    Cribbed from a NY Times parody account on Twitter, @DougJBalloon;

    I’m a white man. Let me explain why the attacks on books, Critical Race Theory, abortion, voting, congressional districts, affirmative action, LGBTQ people, and Biden’s decision to appoint a Black woman to the Supreme Court have nothing to do with race or gender.

    This account is well worth following.

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  9. Moosebreath says:

    @James Joyner:

    “There was almost universal rejection from the intellectual class, myself included, of the Harriet Miers nomination. And I don’t think it was because she was a woman.”

    My understanding was that Miers nomination was opposed by Republicans only, primarily because she was not a product of the Federalist Society. Republicans were worried that she would be another Souter, while Democrats were greeting the nomination with encouragement.

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  10. Matt Bernius says:

    @Moosebreath:

    If Indiana Jones wasn’t there, the Nazis would have done exactly the same thing, and the Ark of the Covenant would have destroyed the people who opened it.

    That reading of Raiders was actually why I thought it would have been a better example to advance my “only [x] could do [y]” argument than Luke Skywalker. And I agree that footnote doesn’t read clearly. I’ll tweak it.

    1
  11. gVOR08 says:

    @James Joyner: Try looking at it this way, James. At best, the most generous interpretation, Shapiro coming in and saying Biden should have nominated Sri Srinivasan is akin to me commenting that you shouldn’t have devoted a column to the SCOTUS pick when I think you should have written about the plight of the Uighers.

    And stop digging. It took Doug years to learn to let his posts stand and not drop into comments constantly to argue about them.

    3
  12. SKI says:

    @James Joyner:

    The point of the Shapiro post is that we should be able to have the discussion of why “merit” isn’t so cut-and-dried without the presumption that everyone—or even most people—who need to be persuaded on that front are bigots.

    Nominees who aren’t white males have been all presumed to be lesser, to be selected for their race or gender. White male is seen as the default – the template – the presumption by the mostly white males commenting.

    Why can’t we accurately label that as prejudice?

    People can be racist without be members of the KKK; Antisemitic without being actual Nazis.

    Actions can be bigoted without condemning the person to a lifetime exclusion from society. That said, when there is a pattern, it doesn’t help anyone to ignore reality. Andrew Sullivan is a racist, not for one statement but a lifetime of them.

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  13. Matt Bernius says:

    @gVOR08:

    And stop digging. It took Doug years to learn to let his posts stand and not drop into comments constantly to argue about them.

    Wait?!… I’m not supposed to what now?!

    6
  14. EddieInCA says:

    @Matt Bernius:
    @James Joyner:

    I can’t take the caterwauling about “merit” seriously after there was not a fvcking peep from Conservatives, NR, or Charlie Sykes about the LITERALLY unqualified judges put forth by Trump who were rubberstamped by a GOP Senate.

    Spare me.

    6 judges on appeals courts alone. UNQUALIFIED.

    NR actually defended the lack of qualifications from some of the confirmed judges.

    https://www.justice.gov/opa/blog/national-review-op-ed-myth-unqualified-trump-judge

    The hypocrisy is astounding but not unsurprising.

    The following nominees were rated not qualified by a majority or a substantial majority:

    Charles B. Goodwin, a nominee to the United States District Court for the Western District of Oklahoma;
    Holly Lou Teeter, a nominee to the United States District Court for the District of Kansas;
    Jonathan Kobes, a nominee to the United States Court of Appeals for the 8th Circuit;
    Justin Walker, a nominee to the United States District Court for the Western District of Kentucky; and
    Lawrence VanDyke, a nominee to the United States Court of Appeals for the 9th Circuit.
    Kathryn Kimball Mizelle, a nominee to the United States District Court for the Middle District of Florida.

    www. ballotpedia.org/ABA_ratings_during_the_Trump_administration

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  15. Just nutha ignint cracker says:

    It’s a good thing that Critical Race Theory is just reverse-racism nonsense. If it was a serious issue, this discussion would be significantly different all around.

    2
  16. James Joyner says:

    @Matt Bernius: Fair point on the length of this trend. Souter and Thomas were probably the last Justices without something close to the spectacular CV we’ve come to expect. (Which was a weird period of trying to find nominees without a “paper trail” in the post-Bork era.) That Sotomayor’s qualifications were controversial despite years on the federal bench is telling.

    I also agree on the fact that we’ve only had one Black nominee since Marshall—and that out of pressure not to go back to an all-white court. A large part of that, frankly, is that most of the nominations have come from Republican Presidents and the bench of Black, Republicans on the appellate courts has to be tiny. Still, Clinton had two and Obama had three shots at it and went all-white. (I’m counting Jews as white in that, which would have been absurd once upon a time but seems natural now.)

    @Moosebreath: I don’t remember much about the political arguments. But the intellectuals who argue the merits of SCOTUS nominees were almost universally aghast.

    1
  17. Scott says:

    This whole discussion is just the exact same tiresome arguments used in college admission affirmative action cases. Which, BTW, a case the Supreme Court just decided to take up again just six years after the last case. Which indicates to me that the SC justices are not just august sages waiting to provide profound wisdom but rather activist, political hacks despite all their credentials.

    Too bad we can’t have each of the Circuit Courts provide a SC justice. We would at least have geographical diversity.

    6
  18. Matt Bernius says:

    @SKI:

    Nominees who aren’t white males have been all presumed to be lesser, to be selected for their race or gender. White male is seen as the default – the template – the presumption by the mostly white males commenting.

    Why can’t we accurately label that as prejudice?

    Couple quick random thoughts as I really need to do other work:

    Since there is already a pretty active discussion of it in the other post, let’s leave the discussion of Shapiro-the-man out of this thread. The only thing I can contribute to that discussion is in all of his editorials he names non-white individuals who he thinks are better candidates.

    The degree I have a specific issue with Shapiro is in his usage of “affirmative-action” which invokes a frame of analysis that inherently locks us into a racial analysis of a selection as inherently lesser. And that’s very much a result of the Right redefining the term and adding normative qualities to it.

    As a side note, there is a post I want to write on reflecting on the cultural differences (if they exist) between being racism and predujice. It’s based on a provocative twitter thread written my Jonathon Blank earlier this week that has been living rent-free in my head since I read it.

    1
  19. Michael Reynolds says:

    @Daryl and his brother Darryl:

    I’m a white man. Let me explain why

    The rightness or wrongness of an argument is not a function of the race of the person proposing the argument. If White people have no business quibbling with CRT, then their support for CRT is equally worthless.

    Truth is truth, regardless of race, sex, age, height, weight . . . or religion. The Nazis rejected advanced physics as a “Jewish science.” So Einstein moved to New Jersey and a decade later, boom! went the first nuke.

    If Race = Truth, Clarence Thomas would be brilliant. He’s not. As many people – including many White people – have pointed out. Given the demographic realities – Blacks are 13% of the population – no progress on issues affecting Black people can be made without White support. Allies are allowed to form their own opinions.

    5
  20. Just nutha ignint cracker says:

    @My Yixiao: Anytime the choice is someone the person making the comment doesn’t want for the job, the discussion will revolve around “that person was only chosen because he (or she) is “X.” Disguising the process doesn’t make any difference.

    2
  21. Matt Bernius says:

    @James Joyner:

    Which was a weird period of trying to find nominees without a “paper trail” in the post-Bork era.

    Or in the case of Justice Douglas Ginsburg a “rolling-paper trail.”

    Ba-dump-cah!

    4
  22. Argon says:

    Meritocracy: Kavanaugh, Federalist Society judges …

    Not sure ‘meritocracy’ means what they think it means …

    5
  23. Just nutha ignint cracker says:

    @Moosebreath: Also, did Indiana Jones really stop the Nazis from getting the Ark in the first place? It’s been a long time since I’ve seen the movie, but as I recall he was off to the side somewhere with soldiers holding guns on him.

  24. Scott says:

    @EddieInCA:

    Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they, and a little chance? We can’t have all Brandeises, Frankfurters and Cardozos.

    – Sen Roman Hruska (R-Neb) during the 1970 nomination of G. Harrold Carswell.

    3
  25. Dude Kembro says:

    @James Joyner: It was not intellectuals who got Harriet Miers sent to the dustbin so quickly, it was evangelicals. If Miers had been a fire breathing Federalist Society forced birther, intellectuals and Democrats would have been alone in their opposition.

    The right does not really care about qualifications, affirmative action, or brilliance any further than they track with preferred conservative legal goals.

    8
  26. Matt Bernius says:

    @Scott that’s an incredible quote. Do you have a reference for it?
    Found it in a great article on all of Nixon’s failed supreme court nominees: https://www.lawweekly.org/col/2019/2/11/arent-the-mediocre-entitled-to-a-little-representation-nixons-failed-supreme-court-nominees

    1
  27. SKI says:
  28. Dude Kembro says:

    @James Joyner:

    That Sotomayor’s qualifications were controversial despite years on the federal bench is telling.

    That Barrett’s much thinner resumé was not is similarly telling. It’s all about politics. If you’re ‘underqualified’ (gag) or less-than-brilliant but doing the bidding of America’s corporate-evangelical complex, a la Barrett and Thomas, you’re alright with the good ole boys.

    Sotomayor won’t play by the rules. And best believe a Biden-nominated black woman won’t. Thus: affirmative action, identity politics, wokeity McWokesABunch, lesser, blah blah blah.

    6
  29. Daryl and his brother Darryl says:

    @Michael Reynolds:
    Of course.
    The only point is that it’s ridiculous to hear those who have been advantaged in this country since the first Europeans stepped of the boat proselytizing about how it’s unacceptable to grant any advantage to others, or to even discuss the advantage they have enjoyed for centuries and how, by definition, that has left others disadvantaged.

    5
  30. Scott says:

    @Matt Bernius: I’m old enough to actually remember it when it was said. Just googled it and Wikipedia had the quote also.

    3
  31. Kingdaddy says:

    I think some discussion of the Supreme Court’s demographics is unavoidable. For example, two-thirds of the justices are Catholics, while only 23% of the US population is Catholic. Is that a completely neutral fact? Should it never cross Biden’s mind that maybe we have enough Catholics on the Court? Is it anti-Catholic to even raise the question?

    I think Biden’s mistake is his lack of political skill in this case. He could have avoided making any announcement about what sort of nominee he would select for the Supreme Court (or, at least, not something as specific as he did). It wouldn’t have decided the presidential election. Later, he could have picked a highly worthy candidate, who happened to be a black woman, when the opportunity arose, and let the choice speak for itself. Instead, he helped increase the amount of harrumphing about his choice, because didn’t he announce that it was all going to be about identity politics over judicial acumen from the beginning, peas and carrots, peas and carrots. Just more complications for the nominee, more noise drowning out other issues.

    3
  32. DK says:

    @Modulo Myself: Sullivan’s critics spot his nonstop, neverending contradictions and reversals. Dude is full of crap, the worst kind of fraud.

    Sullivan spent all of 2008 insisting that Obama’s “face” (race) was not just a key, but the key qualification. Why? Because then Obama was still in his half-white Magic Negro campaign mode, offering good feels and absolution to Hillary-hating Bell Jar bigots like Sully.

    After RBG passed, Trump pledged to affirmative action a woman onto the Court, excluding men. Not a word of complaint from Sully and other self-serving rightwing crybabies.

    Now Sullivan and his ilk are tantruming over Biden’s pledge to pick a black woman, lying that he opposed Trump’s “it’ll be a woman” pledge (no he did not), and twisting himself into knots to justify Reagan’s pro-woman affirmative action SCOTUS politics.

    Sullivan is an anti-black hypocrite and an intellectually dishonest phony. That he has clout still is sickening.

    6
  33. Stormy Dragon says:

    ,@James Joyner:

    The point of the Shapiro post is that we should be able to have the discussion of why “merit” isn’t so cut-and-dried without the presumption that everyone—or even most people—who need to be persuaded on that front are bigots.

    The problem is your insistence that this represents a failure of Shapiro’s readers rather than a failure of Shapiro himself. If the issue of merit is untied to bigotry, why is it that after multiple attempts, Shapiro has repeatedly failed to articulate the case without having to lapse into bigotted language?

    6
  34. @James Joyner:

    credentialism has become a thing in recent decades. We get into really weird debates on these picks, simply because they’re extremely rare and important. There was almost universal rejection from the intellectual class, myself included, of the Harriet Miers nomination. And I don’t think it was because she was a woman. She was qualified but not highly qualified and people were outraged by that fact.

    I think this conflates credentialism with an argument for The Best Nominee.

    I still agree that Miers was a weak, even if constitutionally qualified candidate. I believe her credentials to have been inadequate.

    (I do find the obsession with Harvard and Yale to be more than a problem, FWIW).

    2
  35. Kathy says:

    From one of the quoted pieces:

    Andrew Sullivan was even harsher.

    “The replacement will be chosen only after the field is radically winnowed by open race and sex discrimination, which have gone from being illegal to being celebrated and practiced by a president of the United States.“

    There is a vast difference between picking someone from an underrepresented group for one position, no matter hos important, than to exclude all but white males from consideration implicitly for centuries. the latter is the race and sex discrimination that is deplored today, not celebrated.

    6
  36. Also: wouldn’t it be nice if there were fixed terms, meaning more opportunities to circulate the pool of Justices? (and therefore greater chances for diversity of various types?).

    6
  37. @My Yixiao:

    It just gives ammo to the opposition.

    In fairness, wouldn’t any pick for any reason at any time give ammo to the opposition?

    5
  38. James Joyner says:

    @Stormy Dragon:

    If the issue of merit is untied to bigotry, why is it that after multiple attempts, Shapiro has repeatedly failed to articulate the case without having to lapse into bigotted language?

    What else has he said? There’s nothing new on his Twitter feed and the only other thing I’ve found that he’s written on the matter is this:

    White House spokeswoman Jen Psaki has now confirmed that the president intends to fulfill his pledge to nominate a black woman. Although the pickings were slim in that demographic category a year ago—when looking to judges of suitable age on federal circuit and state supreme courts—President Biden has already had five black women confirmed to circuit courts, with three more in the pipeline.

    The leading contenders are D.C. Circuit Judge Ketanji Brown Jackson (who took Merrick Garland’s seat when he became attorney general) and California Supreme Court Justice Leondra Kruger. Although “KBJ” seemed to have the inside track for many years—she was much discussed as a potential nominee when Hillary Clinton seemed poised to win the presidency in 2016—Kruger’s youth (45 vs. Jackson’s 51) and perceived stronger jurisprudence may be tilting the odds in her favor.

    That strikes me as pretty anodyne.

    Jackson strikes me as the obvious choice and HarvardLaw92 and others assure that she’s brilliant and a good person to boot. But Shapiro is right: she’s only been an appeals court judge since June, when Biden appointed her to that position. That’s unusual for a SCOTUS pick and, certainly, pales in comparison to Sri Srinivasan’s two years as Chief Judge and seven years as judge of the same circuit.

    Similarly, it’s been a long time, indeed, since someone has been appointed based solely on experience as a state-level judge. Again, I think it’s time to change that. But many non-racists disagree.

  39. @Kathy:

    than to exclude all but white males from consideration implicitly for centuries.

    Indeed. By my count, the plurality of the Court will still be white dudes at the end of the day.

    4
  40. Kingdaddy says:

    @Steven L. Taylor:

    Yeah, “ammo for the opposition” stopped being meaningful at least a decade or two ago.

    5
  41. Michael Cain says:

    My only complaint is that I would like my side (Dems) to nominate people who aren’t Harvard/Yale and 1st, 2nd, or DC Circuits sometime. In my experience, spending essentially an entire college and professional career in the northeast urban corridor colors people’s thinking. It also smacks somewhat of all the other circuits getting second-rate judges in some sense.

    3
  42. DK says:

    @Kingdaddy: Yup. Obama did what we say Biden should have done. He didn’t say, “I’m going to pick a Latina, everybody else go home” like Reagan and Trump pledged to pick women (with nary an outcry). But after Obama picked Sotomayor — who is brilliant and should be chief justice — the right still trashed her as an unqualified ‘identity politics’ pick.

    Then when Obama nominated milquetoast, consensus-minded white male Merrick Garland, Senate Republicans treated this wonderful, smart, stand-up guy like garbage. And a majority of white voters promptly rewarded them for it.

    It does not matter what Biden said or says, because conservatives are going to race-bait, hate, denigrate, and obstruct. That’s what they do and how they win. So in addition to putting someone great on the court, Biden is focused not on appeasing the bad faith opposition but on reigniting the Democratic base in an election year. It’s about time someone did.

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  43. Mimai says:

    We all seem rather selective in when, how, and for whom we emphasize credentials, professional experience, lived (personal) experience, identity, etc. And for each of these domains, what counts as outstanding, qualified, etc.

    Of course we’re selective in this — we’re talking about humans. But we can aspire…

    1
  44. Rick DeMent says:

    You know what would be fun, Expand the supreme court to 28 judges. Run three platoons of judges that would be picked at random each term to hear cases (new TV series: SCOTUS Night Court). Make the term limit 28 years on the bench. Each president gets to nominate one pick every year of their term (unless someone dies or retires then its the Bonus round!!!!).

    What fun!!!!

    4
  45. Gustopher says:

    @Kingdaddy:

    I think Biden’s mistake is his lack of political skill in this case. He could have avoided making any announcement about what sort of nominee he would select for the Supreme Court (or, at least, not something as specific as he did). It wouldn’t have decided the presidential election.

    Biden had considered saying it, then didn’t several times during one of the Primary debates, until Rep. Jim Clyburn cornered him during a break. And then Biden made the promise later in the debate. Clyburn endorsed the next day, and Biden got the vast majority of the Black vote in the North Carolina primary, rescuing his floundering campaign.

    So, honestly, it might have decided the presidential election.

    7
  46. wr says:

    @Matt Bernius: “Wait?!… I’m not supposed to what now?!”

    Don’t listen to that guy with the unpronounceable name. I, for one, like to see you engaged in the discussions!

  47. Mu Yixiao says:

    @Matt Bernius:

    Now that I’m at a real computer and don’t have to try typing this out on my phone…

    I think one can easily make the case that making the pledge ahead of time may have been important for a critical block of the Democratic base–Black and progressive voters. It literally was a campaign promise.

    This is my point: It was a campaign promise he should’t have made. Not because it’s wrong to have a black woman on the SCOTUS bench, but because 1) it ties his hands, and 2) it’s handing ammunition to the opposition from the very beginning.

    So 1) What if an absolutely amazing non-black, minority rises to the attention of POTUS. She is exactly what is needed, and (because of current politics) is not only a lock for confirmation, but a bigger statement to the left. Does Biden go for the best, most confirmable choice? Or does he stick to “it must be a black woman”?

    Likewise, as I point out in the article, chances are that Biden would have been attacked on this regardless of whether or not he had made the promise.

    In that calculus, I don’t see the upside for him in engaging in theatre to hide the decision. Is this really going to cause him to lose support? And if so with whom?

    These both tie to #2.

    If I give 100 third-graders an unlimited supply of water balloons, is it going to prevent me from getting to my car as I go to a big meeting? No. But it’s going to waste my time drying off and changing clothes. The more days before the big meeting I give those balloons, the more time I waste.

    Don’t make the specific promise on the campaign trail. Make promises to “create diversity” or “make SCOTUS more representative” (he’s got pros that know how to word it). Assure the left that nominations won’t be limited to “old white guys”, but don’t give the opposition any specific target to shoot at.

    Now, create a short list that includes black women, Asian women, etc., but also includes (qualified!) candidates that the right can’t really bitch about. They can’t say “He’s excluding whites! Racism!”. The left sees he’s serious about non-white, non-male candidates.

    Finally Biden nominates Jackson.

    The fight starts then, not 6 months before. The right has less time to rally, less time to write the narrative, and less time to build the fear.

    It’s not about avoiding the battles, it’s about deciding where and when they’re going to be fought, and how much advantage you let the opposition have.

    As has been discussed here extensively, the current GOP isn’t about addressing issues, working towards a common goal, or accurately representing their constituencies. They’re all about building a fire and staying in power.

    On this issue, Biden has handed them the keys to the refinery.

    From what I’ve heard here, Jackson is the right person for the Bench (the fact that she was a defense attorney puts her at the top of my list without knowing anything else about her). But because of the approach, Biden is going to have to waste a lot of time, effort, and capital defending his position against the orc hoards when he could have accomplished the same goal while the orcs were still gathering their forces.

  48. Matt Bernius says:

    @Mu Yixiao:
    You blazed right by the key point in my statement…

    I think one can easily make the case that making the pledge ahead of time may have been important for a critical block of the Democratic base–Black and progressive voters. It literally was a campaign promise.

    To the point that Gustopher raised, it appears that this was in fact the case at a critical juncture of the campaign.

    Jame Clyburn appears to have made his support contingent on that promise. See: https://www.foxnews.com/politics/clyburn-confirms-he-urged-biden-nominate-black-woman-supreme-court-floats-possible-candidate

    So maybe, just maybe, making that direct promise, using those specific words, was a political necessity. After all, you need to be elected President to have the potential opportunity to nominate a judge.

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  49. OzarkHillbilly says:

    we as a culture tend to focus on the idea that ultimately there is a single “right person” for a role.

    And that person is inevitably white and male. Otherwise, why would they complain so much about people practicing “identity politics” if they weren’t practicing the exact same thing?

    3
  50. OzarkHillbilly says:

    @Matt Bernius: I intentionally tried my best to not to stake out a position specifically on whether an individual or statement is necessarily racist.

    Yeah well, I have no problem saying it. Why else are they so focused on the eventual nominees race and sex? Why is it so important to them? If they were as colorblind and free of sexism as they inevitably claim to be, they would wait until she is nominated and either support or attack her on the basis of her experience and credentials.

    But they don’t. They are attacking the nomination of an as yet unnamed individual based only on their presumed sex and race. It doesn’t get much more racist and sexist than that.

    Call them what they show themselves to be with their very actions, not the lies that come out of their mouths.

    2
  51. HarvardLaw92 says:

    @Steven L. Taylor:

    I still agree that Miers was a weak, even if constitutionally qualified candidate. I believe her credentials to have been inadequate.

    Miers spent almost her entire legal career as more of a manager than as an attorney. Essentially no experience as a litigator, no background in constitutional law (or for that matter much of any other flavor of law beyond the commercial code). She stumbled her way through meetings with the SJC, where she was ill-prepared, uninformed about the law, and literally invented a non-existent explicit constitutional right. I’m sure she’s probably a lovely person, but it’s difficult to think of another nominee in the course of my lifetime who was less qualified to serve on the court than Harriet Miers.

    2
  52. HarvardLaw92 says:

    @James Joyner:

    Jackson strikes me as the obvious choice and HarvardLaw92 and others assure that she’s brilliant and a good person to boot. But Shapiro is right: she’s only been an appeals court judge since June, when Biden appointed her to that position. That’s unusual for a SCOTUS pick and, certainly, pales in comparison to Sri Srinivasan’s two years as Chief Judge and seven years as judge of the same circuit.

    They’re both brilliant, to be fair about it, and either of them would be a credit to the court were they to serve on it. Obviously, I’m biased in favor of Ketanji because she and her husband are both long-term friends and I’m well acquainted with her. I can’t say that I know Sri, which is to say that we’ve met on a few occasions, but essentially only in passing. The familiarity bonus, as always, is definitely a thing.

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  53. Just nutha ignint cracker says:

    @Matt Bernius:

    So maybe, just maybe, making that direct promise, using those specific words, was a political necessity. After all, you need to be elected President to have the potential opportunity to nominate a judge.

    But now you’ve opened the “we’d have been better off with Bernie/Liz/Somebody else who [theoretically anyway] doesn’t need all that baggage to get the nomination” box back up.

    I leave you with the words of that great moral philosopher, Ricky Nelson:

    You can’t please everyone, so you’ve got to please yourself.

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